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Cook v. Berryhill

United States District Court, D. Maine

November 7, 2017

WALLACE F. COOK, Plaintiff



         On Plaintiff Wallace Cook's application for disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act, Defendant, the Social Security Administration Acting Commissioner, found that Plaintiff has certain medically determinable impairments, but does not have a severe impairment or combination of impairments. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action for judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the October 26, 2015, decision of the Administrative Law Judge (ALJ). (ECF No. 9-2.)[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920.

         The ALJ determined that Plaintiff is not disabled at step 2. While the ALJ recognized medically determinable impairments consisting of status post pituitary tumor, loss of visual acuity, and degenerative disk disease, the ALJ found that the impairments are not “severe” for purposes of the disability standard applicable at step 2. (ALJ Decision ¶¶ 3 - 4, R. 16.)

         Standard of Review

         A court must affirm the administrative decision provided the ALJ applied the correct legal standards and provided the decision is supported by substantial evidence. This is so even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).


         Plaintiff argues that the ALJ erred when he concluded Plaintiff's impairments were not severe because although the ALJ relied on opinions expressed by Disability Determination Services consulting physicians in September 2013 (Trumbull, Ex. 1A) and April 2014 (Lipski, Ex. 5A), after the opinions were issued and before the hearing date, there were some significant new medical findings. (Statement of Errors at 1 - 2.) In particular, Plaintiff contends that new findings of venous insufficiency (Ex. 16F) and polyneuropathy (Ex. 17F), and more recent studies of his degenerative disk disease (Ex. 19F) required additional expert assessment. (Statement of Errors at 3 - 6.) Plaintiff maintains the ALJ's error is particularly problematic because a person of his age (61 as of the October 26, 2015, hearing) and educational background (grade 11), whose skills (self-employed auto mechanic) do not transfer to other work, is deemed disabled if his residual functional capacity for substantial gainful activity is limited to light or sedentary work. (Id. at 7.)

         At step 2, although a social security disability claimant must establish that he or she suffers from a severe condition, the burden is de minimis, designed merely to screen out groundless claims. McDonald v. Sec'y of HHS, 795 F.2d 1118, 1123 (1st Cir. 1986). The ALJ may find that an impairment or combination of impairments is not severe only when the medical evidence “establishes only a slight abnormality or combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered.” Id. at 1124 (quoting Social Security Ruling 85-28). In other words, an impairment is severe if it has more than a minimal impact on the claimant's ability to perform basic work activities on a regular and continuing basis. Id. According to Defendant's regulations, such activities could include walking or standing for as many as six hours, while carrying heavy objects, over the course of an eight-hour day, forty hours per week. 20 C.F.R. §§ 404.1522(a), 404.1545(b); Social Security Ruling 96-8p (“A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.”). This Court has observed:

There is no hard and fast rule requiring renewed evaluation by a consulting expert every time a disability claimant experiences new medical events or obtains new diagnoses in the interval between the initial DDS consultant's RFC assessment and the date of the administrative hearing. Particularly where pain is concerned, an Administrative Law Judge has the unenviable duty to make a credibility determination, 20 C.F.R. §§ 404.1529(a), (c)(1), (c)(4), 416.929(a), (c)(1), (c)(4); SSR 96-7p, and the evidence contained in new medical records may, in some cases, simply dovetail with the credibility determination. Where the dividing line exists is difficult to determine and will depend on the particular facts of a case.

Bachelder v. SSA Comm'r, No. 1:09-CV-436-JAW, 2010 WL 2942689, at *6 (July 19, 2010), report and recommendation adopted, 2010 WL 3155151 (D. Me. Aug. 9, 2010). See also Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (“[T]he amount of weight that can properly be given the conclusions of non-testifying, non-examining physicians will vary with the circumstances, including the nature of the illness and the information provided the expert. In some cases, written reports submitted by non-testifying, non-examining physicians cannot alone constitute substantial evidence, although this is not an ironclad rule.” (citations and internal quotation marks omitted)).

         In this case, Donald Trumbull, M.D., and Marcia Lipski, M.D., determined that Plaintiff's impairments are not severe. In forming their opinions, they considered medical evidence related to Plaintiff's tumor removal/visual acuity, degenerative disk disease, and headaches. (Ex. 1A, R. 70; Ex. 5A, R. 87.) Dr. Lipski also considered a lumbar x-ray report of “mild” degenerative changes, dated April 16, 2014. (R. 88.) Both consultants reviewed the September 2013 examination findings of David Axelman, M.D. (Ex. 6F), who assessed severe limitations impacting ...

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